I move: "That the Bill be now read a Second Time."
I am pleased to present to this House the Transfer of Execution of Sentences Bill 2003. The central purpose of the Bill is to deal with the transfer of the execution of sentences where the sentenced person has fled from the sentencing state to his or her state of nationality. The Bill gives effect to provisions in Article 2 of the Additional Protocol to the Council of Europe's Convention on the Transfer of Sentenced Persons as well as Articles 67- 69 of the Schengen Convention. Articles 67- 69 of the Schengen Convention have provisions that correspond to those in Article 2 of the additional protocol. Enactment of this Bill will enable Ireland to ratify the additional protocol and to operate the relevant Schengen provisions.
The additional protocol and the Schengen provisions supplement the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The 1983 Convention has been given effect in Irish law by the 1995 Act of the same name. Under that Act, a national of one state party detained in another state party can apply for transfer to his or her country of nationality to serve out his or her sentence there.
The present arrangements under the 1995 Act provide for the transfer of prisoners who are already in custody in the sentencing state. The Bill under discussion deals with a different situation. The new arrangements will, instead, provide for the transfer of the execution of the sentence. In other words, the sentence will follow a person who has fled from the sentencing state.
One essential feature of the existing system under the 1995 Act is that it is the prisoner who initiates the process by requesting the transfer. The circumstances arising under this Bill are materially different from those covered by the 1995 Act. As I have indicated, in cases arising under the 1995 Act, the person is already in custody in the sentencing state and consents to return to the state of nationality. However, in the circumstances covered by this Bill, the person has already fled from the sentencing state before serving the sentence and is now in his or her state of nationality. The issue that, therefore, arises is to ensure that the person serves or completes the sentence that was lawfully imposed in the sentencing state.
The consent of the prisoner under the 1995 Act relates not to whether a sentenced person should serve the sentence but to the State in which it is to be served. In circumstances where a person has deliberately fled from the sentencing state and returned to his or her state of nationality, the person has in effect exercised his or her consent in relation to his or her return to the state of nationality. It is then a matter of ensuring that the person serves a sentence that was imposed by the sentencing state.
Before turning to the detailed provisions in the Bill, I will set out the circumstances in which it will apply. The Bill will apply in two categories of cases. First, it can apply in the case of a person sentenced by an Irish court who has fled from this State to his or her state of nationality without either commencing or completing the sentence. In that case, the Minister for Justice, Equality and Law Reform may request the authorities in the other state to enforce the Irish sentence.
In the second situation, a sentencing state may make a similar request to this State in the case of Irish nationals who have fled back to this State prior to the commencement or completion of a sentence. Under this Bill a request from the sentencing state must receive the consent of the Minister for Justice, Equality and Law Reform before an application can be made to the High Court for a warrant for the person's arrest. The Minister has to be satisfied as to certain matters before an application is made to the High Court. In any event, the Minister may, having regard to all the circumstances, decide not to make an application. Following arrest, the High Court may make orders for the carrying out of the foreign sentence in Ireland.
This Bill ensures that we have an effective alternative to extradition. Currently, where a person flees from the sentencing state to his or her home state, the sentencing state has just one option if it wishes to ensure the sentence is served. That option is to request the person's extradition or, as the case may be, surrender to another EU state under the European arrest warrant. Once this Bill is enacted, it will be possible for the sentencing state to rely on an additional option, that is, that the person should serve the sentence in the home state. That is a significant benefit to the sentenced person, while also ensuring that the sentence is served.
I emphasise that the arrangements covered by this Bill, as well as those covered by the 1995 Act, are intended to assist the rehabilitation and reintegration of prisoners who have been sentenced abroad, while also ensuring that the sentence is served. The person's rehabilitation and reintegration will be facilitated by allowing the person to serve the sentence in his or her home state, closer to family and without language and other difficulties. The Bill has 13 sections. I propose to outline the most significant of the provisions, starting with section 4.
Section 4 is an important section in the overall scheme being introduced by this Bill. It provides that the Minister for Foreign Affairs may by order designate countries that have accepted the relevant additional protocol or Schengen provisions. The order will identify the states with which Ireland will operate these arrangements. In other words being a party to the additional protocol or the Schengen Convention will, of itself, not be sufficient. Ireland must also be satisfied about the systems operated by the other state before it agrees to operate these arrangements with it. Ireland will not be operating these arrangements where it is not so satisfied.
Section 5 sets out the circumstances in which the Minister for Justice, Equality and Law Reform may request a country that has been designated under section 4 to take over the enforcement of a sentence imposed in Ireland where the sentenced person has fled from Ireland to that other country.
Section 6 provides that the Minister may consent to a request from a country designated under section 4 for the execution in this State of a sentence imposed in the sentencing country on a person who has now fled to Ireland. Before giving consent the Minister has to be satisfied that the person concerned is regarded as an Irish citizen; the sentence concerned is final; the sentenced person has at least six months of the sentence left to serve; the offence concerned would constitute a criminal offence if committed in the State, that is, dual criminality applies; and having regard to all the circumstances, it would be in order for the Minister to give his or her consent.
Section 7 sets out the procedure by which a sentence imposed in another state may be executed in this State. It provides for a certificate to be presented to the High Court by or on behalf of the Minister, indicating that the Minister consents to taking over the enforcement of the sentence. It also provides for an application to be made to the High Court for the issue of a warrant authorising the arrest of the person concerned. The High Court, on production of the certificate, issues a warrant for the arrest of the person if satisfied there has been compliance withsection 6.
The ministerial certificate must contain certain information, for example, the name and address, where known, of the sentenced person and the sentence imposed on him or her.
Section 8 of the Bill sets out the procedures relating to the issue by the High Court of a provisional arrest warrant. This section gives effect to Article 68(2) of the Schengen Convention and Article 2(2) of the additional protocol. Those articles provide that a sentencing state may request the administering state, prior to the arrival of documents supporting the request and prior to the decision on the request, to take the sentenced person into police custody or to take other equivalent measures.
An application can be made to the High Court for a warrant authorising the provisional arrest of the person where a request has been made by a sentencing country. The application may be made to the High Court by a member of the Garda Síochána not below the rank of inspector but only with the consent of the Minister. The Bill sets out the details that are to be included in the request for the warrant.
A warrant endorsed under section 7 or 8 may be executed by any member of the Garda Síochána in any part of the State even if it is not in the possession of the member at the time. However, the warrant must be shown, and a copy given, to the person arrested at the time of arrest or within 24 hours thereafter. A person arrested under a warrant must be brought before the High Court as soon as possible.
The High Court must remand in custody a person arrested under a provisional arrest warrant pending the production of a ministerial certificate referred to earlier under section 7. That certificate will indicate that the Minister has received and is consenting to the request from the sentencing state. If a certificate is not produced within 18 days of the person's arrest the person will be released. The release of any person will not prejudice his or her rearrest if a request for the enforcement of the penalty or detention order is afterwards made.
Section 9 provides that the High Court may make an order committing the person to a prison or St. Patrick's Institution for the purposes of serving the sentence or remainder thereof. Before making the order, the High Court must be satisfied about the matters I have listed under section 6, that is, dual criminality etc. In addition, the High Court will not make an order if it considers that the safeguard provisions in the Extradition Act or, as appropriate, the European Arrest Warrant Act are not being respected. In other words, a person detained under this Bill will have the same protections available to him or her as if he or she was being sought under an extradition request or a European arrest warrant.
The effect of an order under section 9 is to authorise the continued enforcement by the State of the sentence imposed by the sentencing state and means, in practice, that the whole or the balance of the sentence will have to be served in Ireland. In other words, it will have the same effect as if it were a sentence imposed here. It will not be subject to appeal in this jurisdiction since that remains the prerogative of the sentencing state that imposed the sentence and since the Minister and High Court have satisfied themselves that the sentence to be served here is final under the law of the sentencing state. In all other respects, the sentence will be served in the same way as a sentence imposed here and subject to the same rules, including remission and temporary release. In addition, allowance will be made for any time served pending the making of the order or in respect of any part of the sentence already served in the sentencing state.
Section 9(3) provides that the Minister may apply to the court to adapt the duration of the sentence to conform with our law if the sentence imposed by the sentencing state is greater than the maximum term to which the person would be liable if he or she had committed the offence in the State.
Section 9(4) provides that any element of a sentence as imposed, excluding duration, which renders the sentence less favourable than one to which the person would be liable had he or she been convicted in the State for a similar offence will not apply if the High Court so directs. For example, Ireland will not impose penal servitude even if the original sentence provided for this. Enforcement of the sentence ceases where the State is notified by the sentencing country that the person would be entitled to be released under its law. The person will be released unless his or her continued detention in Ireland is required as a result of a sentence imposed here or the person has been remanded in custody in respect of an offence committed in Ireland.
Section 10 provides that the Criminal Procedure Act 1993 shall not apply to a person who is detained under this Bill. The 1993 Act provides for judicial review of certain convictions and sentences, presentation of petitions, the grant of pardon on the grounds of miscarriage of justice and payment of compensation by the State. Such proceedings would not be appropriate in the circumstances covered by this Bill, since the events, witnesses, evidence, etc. are outside the jurisdiction and are not amenable to the Irish courts. However, the Bill does not prevent the person pursuing such an action under the law of the sentencing state.
Section 11 provides that no proceedings under section 3 of the Criminal Law (Jurisdiction) Act 1976 will be taken against a person who is imprisoned here under this Bill. Section 3 of the 1976 Act provides that a person who escapes from any lawful custody in which he or she is held in Northern Ireland shall be guilty of an offence. Section 11 therefore avoids a situation where the person could be liable to serve not only a sentence imposed in Northern Ireland but, in addition, could be proceeded against under section 3 of the 1976 Act.
The Bill ensures fugitives serve their sentences. It also reduces the risk of Ireland being seen as a safe haven for fugitives. The provisions also have advantages for the prisoner in that they offer an alternative to extradition that may be more favourable to the sentenced person and they also facilitate the family and relatives of the sentenced person by easing visiting arrangements and other contacts.
The Bill contains effective safeguards. The consent of the Minister is required before a request can be processed and the Minister will have discretion to decline requests where he or she is not satisfied with or has concerns about the arrangements being proposed in any particular case. In any event, Ireland will operate these arrangements only with states in whose systems we have confidence. I would also stress that a person may be arrested and imprisoned here only with the consent of the High Court. The High Court is required to ensure the extensive safeguards available in extradition or European arrest warrant cases are also available to persons arrested under this Bill. In addition, a person can be imprisoned only if convicted of an offence that corresponds to an offence under Irish law. I commend the Bill to the House.